Defining Protected Wetlands Gets Mucky

Developers are feeling encouraged by last month’s US Supreme
Court ruling on wetlands. The High Court was deciding on which wetlands deserve protection under the Clean Water Act. Some say it’s more likely
they’ll get their building permits now. Defenders of the Clean Water Act
think those high hopes are premature. The GLRC’s Tracy Samilton takes
us to the wetland where the fight began:

Transcript

Developers are feeling encouraged by last month’s U.S. Supreme Court
ruling on which wetlands deserve protection from development under the
Clean Water Act. Some say it’s more likely they’ll get their building
permits now. Defenders of the Clean Water Act think those high hopes are
premature. The GLRC’s Tracy Samilton takes us to the wetland where the
fight began.


Wetlands are supposed to be wet, right? Certainly wetter than this mucky little forest in
a township in Southeast Michigan, surrounded by subdivisions and strip malls. Tim Stoepker
leads the way through battalions of attacking mosquitoes. He points at a big puddle:


“Basically, you have a forested wetland here, with no diversity of plant life because you have
such a thick canopy of trees and you don’t typically have all your wetland,
typical wetland plants on the interior here because of that and because there’s no standing
water, you don’t have any of your aquatic species.”


Stoepker’s business suit trousers are getting streaked with mud but he keeps going. Next stop
is a drainage ditch at the edge of the property. It’s pretty dry:


“Now, if we were to come out here in August or July, I mean, that ditch would even be, there
would be nothing in that ditch.”


Stoepker has represented landowner Keith Carabell since the mid-1980s. Carabell was denied a permit
to build senior condos on his property. He appealed it all the way to the U.S. Supreme Court.
Stoker thinks if the nine Supreme Court Justices had seen this ditch in person, last month’s
wetlands decision would have been different. A majority would have ruled that the test for
Clean Water Act protection is permanent surface water flowing into a navigable water. Even so,
he’s optimistic. Five Justices reaffirmed that the Clean Water Act pertains only to wetlands
with a “significant nexus,” or connection, to navigable waters. He says that’s not the case
here:


“It’s hydrologically isolated from receiving and sending waters.”


But the U.S. Army Corps of Engineers sees it differently. The Corps is the agency that decides
if a wetland falls under the Clean Water Act. If so, it then issues or denies building permits.
The Corps told field officers not to talk to reporters about this or any case pending guidance
from headquarters. But a source familiar with Corps regulations says water from this wetland
does flow into the ditch. From there, it empties into a drain, which dumps into a stream and
then leads to Lake St. Clair a mile away, one of the most polluted bodies of water in the Great
Lakes region. The source says the wetland also connects to the drain on another side of the
property, and it will meet the significant nexus test when the case goes back to the lower
court.


Environmentalists like Jim Murphy of the National Wildlife Federation hope that’s true.
Murphy says small wetlands like this one need to be protected, despite their lack of surface
water and showy aquatic species:


“I think we make a mistake when we just feel that the only thing we need to protect are
charismatic wetlands, for a number of reasons. For one, even wetlands that don’t necessarily look that pretty
that pretty are oftentimes performing enormous functions, whether it be habitat, flood control,
water filtration….”


All functions that Army Corps of Engineers mentioned when it denied a permit in this case.
Murphy says the looming question now is, how will the agency react to the ruling? If they pull
back, he thinks we will lose wetlands at a much quicker pace. Or the Corps could interpret
the ruling as broadly as possible:


“We feel that if the Corps is willing to stand firm and be aggressive, that they can still
maintain protection for a good number of waters.”


Murphy thinks even at best, the Supreme Court ruling will encourage even more developers like
Keith Carabell to challenge permit denials in court. That may be true, but Tom Stoepker, the
attorney for Keith Caraball, says all that most developers want are more thoughtful decisions
from the Corps, and they want the Corps to back off from places it ought not to be. He says
that includes this wetland where anyone can see the water in it isn’t going anywhere.


For the GLRC, I’m Tracy Samilton.

Related Links

Study: Mtbe Alternatives Pose Similar Threat

The Clean Air Act says gasoline must contain additives to help it burn more cleanly. But the common additive MTBE is a proven environmental threat. And a new study says the alternatives could be just as dangerous. The Great Lakes Radio Consortium’s Corbin Sullivan reports:

Transcript

The Clean Air Act says gasoline must contain additives to help it burn more cleanly. But the
common additive MTBE is a proven environmental threat. And a new study says the alternatives
could be just as dangerous. The Great Lakes Radio Consortium’s Corbin Sullivan reports:


Underground storage tanks at gas stations can leak. Fuel
additives like MTBE leak faster than the gas and can
cause groundwater pollution.


For that reason, seventeen states, including New York,
Michigan and Illinois have restricted or will restrict the use
of MTBE in gasoline.


That means other fuel additives intended to reduce air
pollution will have to be used instead.


Mel Suffet co-authored a new study published in the
journal Environmental Science and Technology.


He says some of the alternatives to MTBE can cause the
same problems.


They can be toxic and can make groundwater
undrinkable. Suffet says to solve the problem, leaks need
to be prevented.


“The first thing you have to do is develop a design of
underground fuel storage tanks to emphasize containment
leak detection and repair.”


Suffet says even modern tanks are prone to leaks. So he
says designers need to go back to the drawing board to
create a leak free tank.


For the Great Lakes Radio Consortium, I’m Corbin
Sullivan.

Related Links

Lax Enforcement in Ontario?

A new report says cutbacks in the Ontario government have led to a shortfall in monitoring for water pollution. The Great Lakes Radio Consortium’s Karen Kelly has this report:

Transcript

A new report says cutbacks in the Ontario government have led to a shortfall in monitoring for water pollution. The Great Lakes Radio Consortium’s Karen
Kelly reports.


The study was released by the Canadian Institute of Environmental Law and Policy.
It looked at Ontario’s pollution program for surface and groundwater over a five-year period. And it found the number of pollution discharges, spills and leaks doubled between 1994 and 99, while the number of investigations dropped. But ministry spokesman John Steele says things have changed over the last couple of years.


“Our enforcement figures are very, very good right now. I think there are about 200 additional staff of which about 150 are involved in the enforcement.”


Steele says the number of cleanup orders issued to industry increased by more than 300 percent in the last two years. But the study’s authors say the province releases little information about water pollution to the public. For the Great Lakes Radio Consortium, I’m Karen Kelly.